Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Thursday, January 31, 2008

The Council of Ministers of Education Canada (CMEC) seems very confident that their prized exception for free use of the internet will be included in the new bill. Here’s their announcement today. Note this rather confident language:

This change is being referred to as the “educational use of the Internet amendment.” (You are soon going to be hearing a lot about this amendment in the media as proposals to change the Copyright Act make their way through Parliament.) The education community views this amendment as an essential piece of modernizing Canada’s copyright laws to reflect the new realities of our digital world.

(emphasis added)

The inclusion of this amendment seems to be a fait accompli, according to this. How could CMEC possibly know that, I wonder?

In any event, this would not be surprising. It would seem at first like good politics. The government has probably been convinced that it will seem user and education friendly and be good for federal provincial relations, although perhaps not necessarily so with Quebec.

But it will be a monumental error on the part of the government if it believes all of this.

CMEC’s has long lobbied for an educational exception for publicly available material (“PAM”) from the internet. This will supposedly ensure that educators and students can download, save, print, mix, remix, and generally do what everyone does with stuff that isn’t DRMed or TPMed or pay-walled on the internet.

What’s wrong with that? The answer is simple - just about everything. All of the aforesaid is what has already been going on for years with the express or implied consent of the content posters. Any doubts about this were largely alleviated by the Supreme Court of Canada’s landmark 2004 CCH decision. Research and private study are what educators and students use the internet for. Besides, there is almost a century and a half of common law about “implied license”, which goes back at least to 1871. The extra scintilla of certainty that the educators have been convinced that they need will likely create the implication that everyone outside of their tent does not have these rights. CMEC’s lack of awareness of the implications of the CCH decision and its lack of faith in the Supreme Court of Canada’s CCH decision are manifestly apparent in its copyright manifesto, published here, which came out the year after the CCH decision but which is apparently oblivious to its existence.

I’m not sure what CMEC doesn’t understand about the notion that when a website has an explicit “print” button on it or is freely available and allows printing , saving, forwarding, cutting and pasting, etc. by using ordinary point and click browser commands, then the poster has provided consent for printing, saving, forwarding, and all of the other things that ordinary computers and software permit. Nobody is forced to make their material available online. There are ways to restrict how it is used, if the poster so wishes. Mostly, they don’t.

The CMEC proposal would, if implemented, directly and adversely impact on public libraries, corporate users, and millions of ordinary Canadians with their Rogers and Sympatico and other ISP accounts. What the student can do with her campus account will now by implication be illegal with her mother’s Sympatico or her father’s Rogers account.

But wait - there would be a “solution”, of course. Access Copyright, Canada’s ever so convenient collective, would ask the Copyright Board for a tariff on corporate and private ISP accounts - because ordinary businesses and folks outside of the educational tent are precisely the kind of subscribers that the ISPs serve. Something modest - just a few bucks a month per subscribers. Or a few tens of millions a year - most of which will flow out the country when it finally gets distributed. But what else is new? A few tens of millions a year is a routine transaction for the Copyright Board. It would soon adds up to a few hundreds of millions. But just another few bucks a month for most ISP subscribers. The CRTC and the Copyright Board have allowed these small monthly charges here and there to become billions overall. This is how Canada increasingly seems to work - or to not work, depending on one's point of view.

Naturally, nothing comparable exists or would be dreamt of in the USA, to which most of the money would flow. The USA would never tolerate what would effectively be a “tax” on free information on the internet and the right to deal with it and use it fairly.

The Government will tout this as a user friendly exception to balance its predicably content owner friendly Canadian DMCA (“CDMCA”) approach.

But nothing could be further from the truth. This could be THE most directly costly and user unfriendly component of the new bill. On a par with the CDMCA aspect we fear. And even more immediately and obviosly costly, financially speaking.

Cui Bono? Just “follow the money”, as various peopleare said to have saidin another era. The answer is - and it’s a no brainer - Access Copyright. CMEC wouldn’t benefit because it would merely be getting what most expert critics believe it essentially already has in any event.

Would Access Copyright sue the educators without this PAM internet exception? Highly unlikely. And even if it did, the educators would have a very strong case and huge resources to fight it with the best available IP litigators. The maxim of “Make my day” comes to mind. And if worst came to worst and the trial level court were to somehow rule against the educators, the Government could then step in if necessary and provide an amendment in the highly unlikely event that one was needed. There is precedent for such legislative intervention in the midst of litigation. Believe me.

A typical educator is probably more likely to be struck by lightning on the way to school or to win a huge jackpot in Lotto 649 than to see a successful law suit against his or her institution for using the internet in the way that countless millions of those who post PAM material obviously intend.

Whatever CMEC’s apparently good intentions may be, the road to public policy disaster in paved with such intentions this instance. The CMEC “PAM” internet educational exception along with the “CDMCA” approach are likely to be by far the most controversial features of this potential bill.

The exception that CMEC now seeks is nothing like the “library exception” that was briefly discussed in the CCH case. That exception was not a substantive exception - it merely reflected the obvious principle that a library should not be liable for doing something for a patron that patron could legally do for herself. That is at best redundant and the Supremes politely pointed out that it was unnecessary to consider it. In this instance, the CMEC exception would be anything but redundant. It would define, by implication, both what is legal inside the educational tent and by implication what is illegal outside. It is difficult to imagine any drafting ingenuity sufficient to avoid this necessary implication.

The educators, such as CMEC and AUCC, in my humble opinion should be focussed on reducing or eliminating the possibility of statutory damages in their environment and other efforts to achieve comparable status to their counterparts in the USA in respect of classroom and distance learning activity. This is clearly achievable because it has existed for a long time in the USA, from whence most pressure for copyright reform is coming. This would be more useful and less harmful than an unnecessary and unprecedented special exception with harmful “a contrario” effects for everyone else.

Monday, January 28, 2008

As everyone nervously watches the countdown to a new Canadian copyright reform bill, it is worth noting that IP politics is starting to enter the US Presidential race, as reported by IP Watch.

Obama's comments as reported by IP Watch might be seen as particularly interesting to Canadians:

Obama, who was the earliest candidate in the race to put together an innovation platform, called for [pdf] a similar degree of balance, noting that “as policymakers, we are in a constant process of examining our laws to ensure that the protections we place on intellectual property are sufficient to encourage invention without hindering innovation that builds on previous work or unfairly limiting consumers from using the goods they purchase in a way that is fair to creators.”

Obama: I would support, in concept, allowing Americans to make a single backup copy of a digital product they have purchased. And I think the market is moving in the direction of greater consumer freedom.

As policymakers, we are in a constant process of examining our laws to ensure that the protections we place on intellectual property are sufficient to encourage invention without hindering innovation that builds on previous work or unfairly limiting consumers from using the goods they purchase in a way that is fair to creators.

Maybe now they'll go after Certs®, the breath mint, which is a registered trade-mark but not an "official mark," because the appearance of the CERTS mark resembles CENTS and the very thought of such litigation would take your breath away. Actually, it wouldn't work, but never mind details such as the law and think of all the tax payer's money that would be spent in coming to that belated conclusion..

To coin a phrase, I'd like to think that my two cents worth of prescient advice on this innocent little blog helped save the taxpayers from a senseless decent into very expensive nonsense.

Canadians were suddenly freed last week from the grim prospect of a whopping $75 "iPod tax" on portable digital music players with 30 gigabytes or more of embedded storage space. The levy, approved by the Copyright Board of Canada in July, would have kicked in this year, raising the domestic price on high-end versions of Apple's iPod and its market rivals by around 30%. Retailers and manufacturers naturally moved fast to appeal the decision, and won big. The decision penned by Federal Court of Appeal Judge Karen Sharlow is just six brusque paragraphs in length, and required less than 24 hours to deliver.

It is not hard to understand why the court's action was so quick and vicious...

Thursday, January 10, 2008

The Federal Court of Appeal ("FCA") has quashed the Copyright Board's July 19, 2007 decision to go ahead with its planned hearing to certify a levy of up to $75 on iPods and other Digital Audio Recorders.

The FCA hearing on the judicial review of the Board's decision was held yesterday. It took the Court less than 24 hours to render its decision - which told the Board that the Court's previous decision on the same issue from 2004 is "dispositive."

The Court, per Sharlow, J.A., said:

I read that case as authority for the proposition that the Copyright Board has no legal authority to certify a tariff on digital audio recorders or on the memory permanently embedded in digital audio recorders. That proposition is binding on the Copyright Board....

It follows that the Copyright Board erred in law when it concluded that it has the legal authority to certify the tariff that CPCC has proposed for 2008 and 2009 on digital audio recorders, and in dismissing the applicants’ motions.

I acted in this matter for the Retail Council of Canada, which along with Apple Canada, etc. had brought the applications to quash.

The Applicants were awarded their costs. The reasons are very brief. The Court was very decisive.

P.S. - There's a lot of press coverage - but the Globe and Mail was one of the first to report and has an online collection of comment from over 100 readers. It's here.

"Taxes" on technology are wrong. The private copying levy scheme should be repealed. Why should Canadians pay up to $75 in "taxes" on iPods and similar devices? Given the strong Canadian dollar and the ease of cross-border shopping, this proposed levy would have devastating effects on the Canadian market for these types of devices. Countless Canadians regard this tax as unnecessary, unfair and highly inefficient. Moreover, most of the proceeds leave this country.

Creators of intellectual property deserve to be paid, but not multiple times through several collectives for proliferating and overlapping rights for the same transaction. For example, if a consumer buys a track from iTunes, the consumer shouldn't have to pay further costs for a "communication" right to receive that track online or for a levy to store it on an audio recording medium. Furthermore, where does one draw the line on the boundaries of this tax? This proposed levy sets a dangerous precedent that can easily extend to other devices such as cellphones, personal computers and laptops; in fact, this has not been ruled out by the Copyright Board.

Consumers' rights shouldn't be removed by Digital Rights Management ("DRM") technology, which threatens to put digital locks on content, devices and ultimately our culture. Our customers should be able to do anything that is legal according to copyright law, including making backup copies and copying for purposes of fair dealing. The music industry itself is rapidly abandoning DRM. If anything, consumers need protection from DRM rather than the other way 'round.

Canadians should enjoy a flexible and open-ended list of fair dealing rights, including time, space and format shifting, and the right to mix, remix, mash and engage in satire and parody. Our children now have creative tools we never dreamed of, enabling them to make professional quality movies, sound recordings and engage in remarkable research and learning. Let's not stifle them.

Our customers shouldn't have to worry about being sued for private, non-commercial activities. Canada is not a litigious "zero tolerance" regime. If the law is amended to facilitate such litigation here, experience suggests that it will surely happen. We agree with Steven Page of the Barenaked Ladies who says, "We think lawsuits ... would be terrible for the music business in Canada. It's short-sighted to say 'See you in court' one day and 'See you at Massey Hall' the next."

HK

(Disclosure - I have acted for Best Buy Canada and Future Shop at the Copyright Board and in the Courts on the private copying levy file.)

The Hill Times has a front page article today(for the time being not pay-walled) quoting Michael Geist and I as to how the copyright issue could affect the Conservatives' fortunes in the next election.

I was quoted as follows:

On his blog, Excess Copyright, Howard Knopf, an intellectual property lawyer, also wrote that copyright could become an election issue as many more people are taking note of the file. "It's an emotional file that has lots of zeros attached to it in terms of dollar value. Many billions of dollars in fact. Not to mention cultural sovereignty and consumer rights and choice. A potent combination," Mr. Knopf said. "All of this could add up to votes. And lots of them in the hands of voters who can and will read minutes from committees, blogs and other relevant stuff. And who will find each other and become empowered via the internet. This may not be a cakewalk for the government and it could have interesting consequences at election time.

This was from my Novemer 29, 2007 blog - a couple of weeks or so before we knew that Minister Prentice would retreat....and before Michael's Facebook site had almost 37,000 current members...

The page cannot be found The page you are looking for might have been removed, had its name changed, or is temporarily unavailable. ...Technical Information (for support personnel) Go to Microsoft Product Support Services and perform a title search for the words HTTP and 404.

UPDATE JANUARY 5, 2008:

The Access Copyright links above now work. If you click on them, you will be told:

For Immediate ReleaseMarch 3, 2006Toronto, ON – Access Copyright, The Canadian Copyright Licensing Agency and Creative Commons Canada, in partnership with Creative Commons Corporation in the US, today announced the development of a Canadian public domain registry. The ground-breaking project – the most comprehensive of its kind in Canada – will create an online, globally searchable catalogue of published works that are in the Canadian public domain.

Note the date - March 3, 2006.

So far, the only database of Canadian PD works I've seen is from a certain public domain loving gadfly named Wallace McLean. And he doesn't have revenues of more than $30 million a year.

So where is our Access Copyright public domain registry, after almost two years of waiting?????

Dunno - and I'm now an Access Copyright mole member ;)

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**********************************

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The redoubtable, public domain loving Wallace McLean was an hour early this year with his list of notable and obscure creators whose works entered the public domain, or maybe entered the public domain, or did so in some respects here but not in other ways and maybe there but maybe not here....go figure...

Some notables include Jean Sibelius, who is both highly overrated and underrated...who died in 1957...and whose turgid, frigid, and haunting symphonies would now make excellent fodder for movie scores about bleak northern landscapes and dark Jungian dreams....

But watch out for international issues, conflict of laws problems, etc. As I told the IPKat:

A real problem arises when copyright owners in life + 70 countries try to assert rights extraterritorially in life + 50 countries such as Canada. We had an unpleasant reminder of this earlier this year in Canada from Universal Edition AG of Vienna which threatened a CDN website with lots of PD in Canada scores, including, incredibly, Mahler who died in 1911. Which is a lot more than 70 years ago....

I’ve proposed something potentially useful for WIPO to do along these lines, namely a Public Domain treaty - that might do something to resolve some of the ET and conflict of laws issues... and give WIPO something actually useful and achievable to do...rather than, for example, chasing after a broadcasters’ rights treaty that few want and nobody needs....

...

So, Happy New Year to everyone.....and try do do some good deeds to compensate and atone if it transpires that due to irresistible urges you feel some attraction and secret passion for works in the public domain. You might consider a voluntary donation to Access Copyright (to move it along on its elusive public domain registry) or the RIAA, to help it save great music from extinction by using legally protected DRM to render it all but unusable, and then suing those who love it the most, and to bring such incentives to Canada.

It's true that Bach, Mozart, and Stravinsky didn't have the same incentives, such as life + 70 years, that now drive Britney Spears and others to such lofty creative heights. Nor did they have copyright lawyers whose skills and ingenuity were a match those of modern times...if only they had, the world would surely have been different...